Gilbert v. State
| Decision Date | 10 October 1929 |
| Parties | GILBERT v. STATE. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Petition by Walter Gilbert for writ of certiorari to be issued to the clerk of the circuit court of Hendry county.
Application denied.
Syllabus by the Court
Certiorari may be directed to inferior tribunals exceeding jurisdiction or proceeding illegally where no appeal or writ of error will lie. Common-law writ of certiorari may be directed to inferior tribunals where it is shown that they have exceeded their jurisdiction or where they have proceeded illegally and no appeal or writ of error will lie.
Where record before circuit court on appeal from county judge's court failed to show judgment of conviction, dismissal of appeal was proper. Where record before circuit court on appeal from county judge's court failed to show judgment of conviction, circuit court could not exercise appellate authority to either affirm or reverse, but dismissal of appeal would be proper.
There should not be judgment of affirmance and also dismissal in same case on appeal to circuit court. On appeal to circuit court from county judge's court, there should not be judgment of affirmance and also judgment dismissing appeal in same case.
Petition for certiorari denied because of inconsistent allegations that circuit court on appeal from county judge's court affirmed judgment and dismissed appeal. Petition for certiorari to require clerk of circuit court to transmit record in certain case, and alleging that circuit court affirmed judgment of county judge's court, though record did not show any entry of judgment in lower court, held denied because of inconsistent allegations, in view of allegations that action of circuit judge in dismissing appeal was illegal.
Certiorari to review proceedings of lower court does not issue as matter of right. Writ of certiorari to review proceedings of lower court does not issue as matter of right, but rests in sound discretion of court.
Louis O. Gravely, of La Belle, for petitioner.
The petition of Walter Gilbert prays for a writ of certiorari to be issued out of this court to the clerk of the circuit court of Hendry county, commanding him to transmit to this court a true copy of the record in the above cause. It is alleged in the petition that 'an order has been entered by the Judge of the Circuit Court of the Twelfth Judicial Circuit in and for Hendry County, Florida, affirming judgment of the County Judge's Court, when it appears that the record certified to the Circuit Court did not show any entry of judgment in the lower court.' It is further alleged in the petition 'that the action of the Circuit Judge aforesaid in dismissing your petitioner's appeal to said Court was clearly illegal,' etc.
The common-law writ of certiorari may be directed to inferior tribunals where it is shown that they have exceeded their jurisdiction or where they have proceeded illegally, and no appeal or writ of error will lie. Atlantic C. L. Ry. Co v. Florida F. F. Co., 93 Fla. 161, 112 So. 66, 113 So. 384. See, also, Florida E. C. Ry. Co. v. George, 91 Fla. 42, 107 So. 266; Benton v. State, 74 Fla. 30, 76 So. 341, and authorities therein cited.
Furthermore, it has been held by this court in a number of cases that, 'in order to review and quash the proceedings of an inferior tribunal upon the common-law writ of certiorari, the inferior tribunal must have proceeded in the cause without jurisdiction, or its procedure must have been clearly illegal, or unknown to the law, or essentially irregular.' Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398, 399, 43 Am. St. Rep. 214; Jacksonville, T. & K. W. Ry. v. Boy, 34 Fla. 389, 16 So. 290.
If the record before the circuit court upon appeal from the county judge's court of Hendry county failed to show a judgment of conviction, the circuit court, as stated in Jacksonville, T. & K. W. Ry. v. Boy, 34 Fla. 395, 16 So. 290, 292 (text), 'could not exercise its appellate authority to either affirm or reverse what had been done in the lower court,' and, as was held in that case, the judgment of affirmance was such an essential irregularity and departure from prescribed rules of procedure as to require that it be quashed. See, also, Mattair v. Furchgott, 44 Fla. 620, 32 So. 925.
If there was a dismissal of the appeal, the action of the circuit judge was proper, inasmuch as the record before him did not show the judgment of the county judge's court. Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Tunno v. International Ry. & S. S. Co., 34 Fla. 300, 16 So. 180; Seaboard Air Line Ry. v. Bennett, 47 Fla. 215, 36 So. 86; Jumeau, Adm'r, v. Camp. 48 Fla. 82, 37 So. 522.
In the same case there should not be a judgment of affirmance and also an order of judgment dismissing the appeal.
If we test the petition by the allegations most unfavorable to the petitioner, we will have to conclude...
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...of right but rests in the sound discretion of the superior Court. First National Bank v. Gibbs, 78 Fla. 118, 82 So. 618; Gilbert v. State, 98 Fla. 599, 124 So. 1. Certiorari will not issue where it would be vain and and result in no change in the disposition of the cause. General Motors Acc......
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Gilbert v. State
...petition for writ of certiorari which has been examined by the court and found similar in all respects to the petition in Walter Gilbert v. State of Florida, 124 So. 1, which has been disposed of by opinion filed this date. petition herein is therefore denied on authority of that case. PER ......